J. S08022/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

: 

 v. : 

 : 

DOMENIQUE JAMES LEWIS, : 

 : 

 Appellant : No. 1017 WDA 2015 

 

Appeal from the PCRA Order June 4, 2015 

In the Court of Common Pleas of Allegheny County 

Criminal Division No(s).: CP-02-CR-0008184-2010 

BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J. 

MEMORANDUM BY DUBOW, J.: FILED MARCH 17, 2016 

Appellant, Domenique James Lewis, appeals pro se from the order 

entered on June 4, 2015, dismissing his first petition filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful 

review, we reverse the order of the PCRA court, affirm Appellant’s 

convictions, vacate the judgment of sentence, and remand for resentencing 

consistent with Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 

L.Ed.2d 314 (2013). 

The facts as stated in our memorandum opinion on direct appeal are 

as follows: 

At trial, Megan [Wilsher] testified that on February 26, 2010, 

while Lewis was sitting in her living room, he stood up, pulled 

out a gun, smiled at her, and fired at her. [Wilsher] testified 

Lewis shot her in the face, and after she fell, he shot her again. 

Wilsher lost her right eye as a result of the shooting. See N.T., 

6/22/2012, at 77, 80–81. In corroboration of this testimony, the 
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Commonwealth presented evidence that Lewis’s fingerprints 

were found on a Coke can recovered from the scene. See id. at 

196–197. 

Furthermore, the Commonwealth, through the testimony of 

Detective Scott Evans, introduced a recorded statement made by 

Lewis to police, in which he admitted that on February 26, 2010, 

he had engaged in a struggle with Brett Quinn over a gun that 

discharged in the living room; he took the gun and fired at Quinn 

multiple times, chased him and took his chain and watch; 

returned to the house where he took $400 to $500 dollars from 

Wilsher’s purse, as well as her cellular phone; and then disposed 

of the gun. See N.T., 6/23/2012, at 30–46. The 

Commonwealth, through Detective Evans, also introduced 

documentation to show Lewis did not possess a permit to carry a 

gun. Id. at 46. Finally, outside the presence of the jury, the 

Commonwealth offered into evidence the certification from the 

juvenile court for Lewis’s robbery conviction. Id. at 87. 

Commonwealth v. Lewis, No. 358 WDA 2012 (filed April 29, 2013). 

A jury convicted Appellant of Criminal Attempt - Murder (two counts), 

Aggravated Assault (two counts), Robbery (two counts), and Carrying a 

Firearm Without a License.1 In a bifurcated waiver trial, the trial court found 

Appellant guilty of Possession of Firearms Prohibited.2 On September 8, 

2011, the trial court sentenced Appellant to an aggregate term of 331⁄2 to 67 

years of imprisonment.3

 

1

 18 Pa.C.S. §§ 901(a) and 2502; 18 Pa.C.S. § 2702(a)(1); 18 Pa.C.S. § 

3701(a)(1)(i); and 18 Pa.C.S. § 6106(a)(1), respectively. 

2

 18 Pa.C.S. § 6105(a)(1). 

3

 Specifically, the trial court sentenced Appellant to a term of twenty to forty 

years’ incarceration for the first Attempted Murder conviction and a 

consecutive term of five to ten years’ incarceration for the second Attempted 

Murder conviction. The trial court imposed a consecutive term of five to ten 

years’ incarceration for the first Robbery conviction, and a consecutive term 
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Appellant filed a direct appeal. In an unpublished memorandum, this 

Court affirmed Appellant’s judgment of sentence on April 29, 2013. 

Commonwealth v. Lewis, No. 358 WDA 2012 (filed April 29, 2013). Our 

Supreme Court denied Appellant’s Petition for Allowance of Appeal on 

September 17, 2013. Commonwealth v. Lewis, 74 A.3d 1030 (Pa.Super. 

2013). Appellant’s judgment of sentence became final on December 17, 

2013. 

On August 4, 2014, Appellant filed a timely pro se PCRA petition and 

the PCRA court appointed counsel. On February 17, 2015, appointed 

counsel filed a petition to withdraw and a no-merit letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). 

On February 18, 2015, the PCRA court filed a notice of its intent to 

dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 

907. On June 4, 2015, the PCRA court denied the petition and granted 

counsel’s petition to withdraw. Appellant filed a timely pro se notice of 

appeal on June 25, 2015. Both Appellant and the trial court complied with 

Pa.R.A.P. 1925. 

Appellant raised four issues on appeal, which we have reordered for 

ease of disposition: 

 

of three and one-half to seven years’ incarceration for the Carrying a 

Firearm Without a License conviction. The trial court imposed a finding of 

guilt without further penalty for the remaining convictions. 
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a. Abuse of Discretion: Whether trial court abused its 

discretion when not granting appellant a mistrial due 

to the showing of graphic pictures of the victim 

thereby causing an inflammatory reaction from the 

jury as well as the suggestive nature of the victim's 

identification of the appellant. 

b. Ineffective Assistance of Counsel: Whether trial

counsel for appellant was ineffective for failure to 

object to or challenge the suggestive nature of 

victim, Wilsher’s identification of the appellant, 

thereby violating Commonwealth v. Pursell, 724 A.2d

293, 304 (1999), Strickland v. Washington, 104 

S.Ct. 2062(1984) and U.S.C.A. Const. Amend. 6. 

c. Illegality of Sentence: Whether trial court erred in 

sentencing appellant to an illegal sentence in 

violation of U.S.C.A. Cont. Amend. 5, 8, 14 and Pa.

Const. Art. 1 §10, thereby giving appellant the right 

to raise such claim by way of sentencing appellant 

solely on the severity of crime. 

d. Abuse of Discretion Based on Illegality of 

Sentence: Whether Trial Court erred in respect to 

the discretionary aspect of appellant’s sentence in

accordance to 42 Pa. Cons. Stat. § 9721, 9725, 204 

Pa. Code § 303.2 et seq., and 42 Pa. Cons. Stat. § 

9721(b) as appellant contends that he was 

prejudiced by there being substantial question that

the sentence imposed was not appropriate under the 

sentencing code, thereby, violating U.S.C.A. 5 and 

14 and Pa. Const. Art 1 § 10, and Commonwealth v. 

Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995). 

Appellant’s Brief at 3-4 (boldface removed). 

We review the denial of a PCRA petition to determine whether the 

record supports the PCRA court’s findings and whether its order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). This Court grants great deference to the findings of the PCRA court if 
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they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 

515 (Pa.Super. 2007). We give no such deference, however, to the court’s 

legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 

2012). 

A PCRA petitioner is not automatically entitled to an evidentiary 

hearing. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014). 

The PCRA court may decline to hold a hearing if the petitioner’s claim is 

patently frivolous and has no support either in the record or in other 

evidence. Id. The reviewing court on appeal must examine each issue 

raised in the PCRA petition in light of the record before it in order to 

determine if the PCRA court erred in its determination that there were no 

genuine issues of material fact in controversy and in denying relief without 

conducting an evidentiary hearing. Id.; see also Commonwealth v. 

Roney, 79 A.3d 595, 604 (Pa. 2013) (applying abuse of discretion standard 

to review of PCRA court’s denial of petition without a hearing). 

To be eligible for relief pursuant to the PCRA, Appellant must establish, 

inter alia, that his conviction or sentence resulted from one or more of the 

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant 

must also establish that the issues raised in the PCRA petition have not been 

previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An allegation of 

error “is waived if the petitioner could have raised it but failed to do so 
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before trial, at trial, during unitary review, on appeal or in a prior state 

postconviction proceeding.” 42 Pa.C.S. § 9544(b). 

In his first issue, Appellant argues that the trial court abused its 

discretion by denying his request for a mistrial based on allegedly 

inflammatory graphic pictures of the victim and the suggestive nature of the 

victim’s identification. The PCRA does not recognize such a claim. See 42 

Pa.C.S. § 9543(a)(2). As the trial court properly found, this is an issue for 

direct appeal. In fact, Appellant previously raised this issue on direct appeal 

and this Court concluded that it was meritless. Commonwealth v. Lewis, 

No. 358 WDA 2012 (filed April 29, 2013); see 42 Pa.C.S. § 9543(a)(3) 

(stating allegation of error previously litigated not eligible for PCRA relief). 

As a result, Appellant’s first claim on appeal must fail. 

In his second issue on appeal, Appellant argues that his trial counsel 

rendered ineffective assistance in failing to challenge the suggestive nature 

of the victims’ identification.4 This claim is also without merit. 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The 

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy 

this burden, Appellant must plead and prove by a preponderance of the 

evidence that: (1) his underlying claim is of arguable merit; (2) the 

 

4

 Appellant argues here for the first time that his trial counsel was ineffective 

for failing to request a Kloiber instruction. Since Appellant failed to include 

this claim in his 1925 Statement of Errors it is waived. 
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particular course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and (3) but for 

counsel’s ineffectiveness, there is a reasonable probability that the outcome 

of the challenged proceedings would have been different. Commonwealth 

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). 

First, Appellant must meet the “arguable merit” prong. “The threshold 

inquiry in ineffectiveness claims is whether the issue/argument/tactic which 

counsel has foregone and which forms the basis for the assertion of 

ineffectiveness is of arguable merit[.]” Commonwealth v. Pierce, 645 

A.2d 189, 194 (Pa. 1994) (internal citation omitted). “Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) 

(internal citation omitted). 

Second, Appellant must meet the “no reasonable basis” prong. We 

apply the “reasonable basis” test to determine whether counsel’s chosen 

course was designed to effectuate his client’s interests. Pierce, supra at 

194-95. “If we conclude that the particular course chosen by counsel had 

some reasonable basis, our inquiry ceases and counsel’s assistance is 

deemed effective.” Id. (internal citation omitted) 

Third, Appellant must meet the “prejudice” prong. “Prejudice is 

established when [a defendant] demonstrates that counsel’s chosen course 

of action had an adverse effect on the outcome of the proceedings.” 
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Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quoting 

Commonwealth v. Balodis, 747 A.2d 341, 343-44 (Pa. 2000)). “The 

defendant must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 

694 (1984)). “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. “A criminal defendant alleging 

prejudice must show that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” Id. (quoting 

Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa. 1999)).

With respect to the identifications in this case, both victims initially 

identified another individual, Josh Stone, as the shooter. Both victims later 

identified Appellant as the shooter. At trial, both victims testified about their 

initial misidentifications of Stone. 

Contrary to Appellant’s argument, trial counsel did challenge the 

nature of the victims’ identifications throughout the trial. Appellant’s trial 

court addressed and challenged the identifications during her opening 

statements. N.T. Trial, 6/22/11, at 39-40. She also vigorously crossexamined the two victims regarding their identifications, the procedures 

used, and their mis-identifications of other individuals. N.T. Trial, 6/22/11, 

at 100-19, 150-59. In closing arguments, Appellant’s trial counsel again 

challenged the identifications, attacked the victims’ credibility, and advanced 
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the ultimately uncredited theory of misidentification. N.T. Trial, 6/23/11, at 

145-60. Because trial counsel did challenge the identification evidence, 

Appellant’s claim of ineffectiveness for failing to challenge the evidence lacks 

arguable merit. See Pierce, supra at 194. 

In his third and fourth issues on appeal, Appellant challenges the 

discretionary aspects and the legality of his sentence. We need not address 

his specific arguments because we are required to vacate Appellant’s 

judgment of sentence on grounds not raised by Appellant. See

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc) 

(“Legality of sentence questions are not waivable and may be raised sua 

sponte by this Court.”). 

The certified record indicates that in 2011, the court imposed 

mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 for each of 

Appellant’s Attempted Murder and Robbery convictions.5 This Court affirmed 

the judgment of sentence on direct appeal. While Appellant’s petition for 

allowance of appeal was pending in our Supreme Court, the United States 

Supreme Court decided Alleyne v. United States, __ U.S. __, 133 S.Ct. 

2151, 186 L.Ed.2d 314 (2013), holding that any fact increasing the 

mandatory minimum sentence for a crime is considered an element of the 

 

5

 Although the record does not contain a sentencing transcript, the 

sentencing court’s forms indicate that it relied on Section 9712. We rely on 

these facts from the certified record in reaching our conclusion that the trial 

court relied on Section 9712 at Appellant’s sentencing. 
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crime to be submitted to the fact-finder and found beyond a reasonable 

doubt. 

In Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.Super. 2014) 

(en banc), appeal denied, 121 A.3d 496 (Pa. 2015), this Court held that 

pursuant to Alleyne, 42 Pa.C.S. § 9712.1 is no longer constitutional. In 

Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), this Court 

declined to give Alleyne retroactive effect to cases on timely collateral 

review when the defendant’s judgment of sentence had been finalized before 

Alleyne was decided. In Commonwealth v. Miller, 102 A.3d 988 

(Pa.Super. 2014), this Court observed that Alleyne does not invalidate a 

mandatory minimum sentence when presented in an untimely PCRA petition. 

Because Appellant’s judgment of sentence was not yet final when 

Alleyne was decided and because he filed a timely PCRA petition, the 

instant case is distinguishable from Riggle and Miller. Accordingly, because 

the trial court sentenced Appellant to a mandatory minimum under Section 

9712, which has been deemed unconstitutional, we must vacate his 

judgment of sentence and remand for resentencing, without consideration of 

the mandatory minimum sentence. 

Appellant’s convictions for Attempted Murder, Aggravated Assault, 

Robbery, Carrying a Firearm Without a License, and Possession of Firearms 

Prohibited affirmed. Judgment of sentence vacated. Case remanded for 

resentencing only. Jurisdiction relinquished. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 3/17/2016